Media - Here And Abroad

In his regular column, the Council's Chairman, Prof David Flint, looks at a number of interesting developments for the Australian media and discusses some interesting people in the media.

The High Court has handed down a splendid decision in two defamation cases. The Court held that, where legitimate political discussion is involved, defendants will be able to plead constitutional privilege. If they can show that they did not know that what they were publishing was not true, or if they were not reckless in publishing, and provided also they were reasonable, they have a good defence. The question is what does "reasonable" mean. The cases on a somewhat similar provision in the NSW Defamation Act are not encouraging. Nevertheless, it is likely that political figures and those otherwise engaged in political debate will be less likely to run for the defamation writ.

As NSW Premier John Fahey noted, people who go into public life would have to develop a thicker hide. He said that current libel laws made it too easy for lawyers and the wealthy to make money out of criticism. (And independent MP John Hatton told the NSW parliament last month that defamation was a $12 million industry for lawyers.)

For more on libel laws,
see the Defamation index page.

The Senate Standing Committee on Legal and Constitutional Affairs has just handed down the first report on its inquiry into the rights and obligations of the media - on the protection of journalists' sources. An intelligent but still conservative report, it recommends that there be a statutory balancing test. Under this a judge would consider a number of relevant issues whenever the question of journalists protecting their sources came up. The committee expressed concern about the growth of powers of statutory bodies to order journalists to reveal their sources (as ICAC did in relation to Deborah Cornwall). However, it did not recommend these no longer be allowed to require that journalists reveal their sources, as the Press Council suggested it should. Such statutory bodies and pre-trial discovery are relatively new danger zones for investigative journalists. Pre-trial discovery offers a person irritated by media exposure the opportunity to stop further stories or, even, to punish an investigative journalist - after all it is known that good journalists do not reveal their sources. The sting in the report is increased accountability, including giving a power to the Press Council to fine newspapers. The Council will be discussing the implications of this recommendation at its November meeting. In any event, the overwhelming number of newspapers observe the Press Council's requirements, only a tiny minority do not. One argument against the proposal will be that, in giving the Press Council this power, it will be turned into a court or administrative tribunal. It could be bogged down by all of the problems in litigation: expense, delays, appeals etc. But we need to keep an open mind on this and discuss it further with the committee and with other interested parties.

For more on Shield Laws,
see the Protection of Sources index page.

Overseas

Senor Eduardo Eurnekian, head of Corporacion Multimedios America of Argentina, is a remarkable media proprietor. His company controls a television network as well as AM and FM radio networks, a quality newspaper, and about 60 cable television channels in Buenos Aires, including his own news channel, CVN. This broadcasts outside of the country, and it seems it will soon be received on Hispanic channels in the United States. He operates from his remarkably successful and efficient headquarters in Buenos Aires, where he is bringing together the news media who will work in all these areas. There are apparently no cross media restrictions in Argentina, but I understand there are competition laws. In any event, there is no shortage of competition both in newspapers and the broadcast media. (The Press Council was not happy with the way cross-media rules were introduced in Australia. They smacked too much of a deal. From an economic or legal viewpoint, they are too piecemeal and make artificial distinctions. Strong competition laws, and a relaxation of restrictions on the use of new technology, can be more effective.) His is a remarkably successful operation and, certainly in Pay TV, well in advance of anything we have in Australia. Senor Eurnekian, a youthful and energetic man, also has a reputation of not interfering with his editors, being more concerned with the business side.

In Santiago de Chile, I had the opportunity of meeting with the sophisticated, aristocratic editor of El Mercurio, Senor Juan Pablo Illanes. An urbane man, he played classical music during our long meeting. Interestingly, he doesn't have the need constantly to refer matters for approval to lawyers: the country's defamation laws are such that there are few libel actions. He is strongly committed to both freedom and responsibility, which is more than amply demonstrated in his excellent newspapers.

While in Chile, I also met with representatives of the National Press Association and of the journalists' association, as well as visiting the newly founded Consejo de Ethica, a Press Council, which has made a successful start. A visit to Channel 13, a television station owned by the Catholic University was an eye-opener. I was shown some fascinating developments. One was an accurate system of ratings done through an independent agency. The meters read audience reactions, which are displayed on computer screens in the studio almost immediately. If, for example, a political interview led to people turning off, they'd move straight to the next item. Is this how news will be produced in the future?

In both Argentina and Chile, our embassies were extremely helpful. Both Ambassador Peck, in Santiago, and Ambassador Wyndham, in Buenos Aires, were able to see me. Timothy Kane, a member of the embassy in Chile, accompanied me to some of the meetings. Well informed on both politics and economics, the embassies are extremely valuable investments.

IBA

Back to Australia, I attended an International Bar Association conference which brought together over 3000 lawyers. Graham Gibson, of Blake Dawson Waldron, had organised an impressive panel on contempt laws chaired by Professor Sally Walker, Australia's leading academic expert on the media.

There was a reference to a local case where the ABC was ordered not to show a program on domestic violence because of its potential effect on an otherwise unrelated criminal trial about domestic violence. Apparently provocation was in issue and it was thought the trial might be aborted. The British lawyers present understood but then a Dutch lawyer spoke. He said he felt as though he had come from the moon. The Dutch just do not see the need to quarantine trials from the media. True, they do not have juries. Perhaps they think their judges are more immune to influence than our juries. (Their judges are career judges and, unlike Australia, are not appointed later in life from experienced practitioners.)

I am not so impressed by the argument that juries need to be protected from public debate. What we should be looking for are people capable of being objective. I think lawyers sometimes underestimate the good sense of the average citizen. However, research suggests witnesses can be contaminated, and not only by photographs of arrested or charged suspects. File photos shown by the police, identikit images and police releases naming "suspects" can, it seems, influence witnesses. Perhaps the answer is a suspicion of eye-witness idetification.

Other matters

The name of David Mellor came up again in the newspapers recently. He was the minister in Britain who, in 1991, warned the British press of the possibility of statutory regulation: "I do believe the popular press is drinking in the last chance saloon". He is no longer in the Cabinet. Fred Brenchley, in The Australian Financial Review of 27 October, chose him as an example of British MPs retaining not only outside jobs but lobbyist consultancies. According to Fred Brenchley, David Mellor retains no less than 10 outside consultancies giving him an income of $210,000 apart from his parliamentary salary. Perhaps this is another reason to keep a good distance between the press and the Government and certainly not have the press run by a statutory tribunal. (The recent allegation that one of Australia's federal statutory tribunals has been "stacked" might be a further reason.)

Speaking of statutory tribunals, it is interesting to speculate how such a body would have handled complaints about press reporting in the light of the admission by Graham Richardson that he had lied. I wonder how a statutory tribunal would have handled complaints about newspapers which persisted in reporting matters that politicians were denying? Would it have ordered newspapers, radio and television to publish corrections? Could you imagine a correction, for example, that Mr Hawke had not promised to hand over power to Mr Keating under "the Kirribilli House agreement"?

A reply from Media Watch to my column in the August issue is in this issue. Media Watch is compelling viewing but I do not always see eye-to-eye with Stuart Littlemore. He is entitled to an opportunity for reply to an article in the News. So is anybody else. However, it needs to be noted that, when in 1991, Media Watch said that there was a 1 in 5 chance of getting a favourable adjudication from the Press Council, I pointed out to Mr Littlemore, in a letter, that the correct figure was closer to 1 in 2. I have not yet seen such a clarification broadcast ...

As the News was being finalised, the federal Government introduced the Racial Hatred Bill, under which racial vilification will attract both the criminal and civil sanctions. Of course, acts and threats of violence are already criminal offences. The Bill will have to be examined to see whether it offends the freedom of political communication implied in the Constitution. It does exclude from the civil provisions fair and accurate reports on matters of public interest, and fair comment, which must be genuinely believed. However, the onus will be on the defendant to prove these exceptions, including public interest.

It should be noted that, while Germany has tough racial vilification laws, Australia is miles in front of her and most other countries when it comes to racial harmony. It is said that these laws will assist in educating people. A resolution of both Houses, perhaps with criminal provisions and an education campaign, might be sufficient.

The 1993 Press Council Prize winning thesis discussed some of these issues and a version of it is printed in this issue.

Prof David Flint

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